Patent law in Canada is governed by the federal Patent Act (R.S.C., 1985, c. P-4), which provides the framework for protecting inventions. The authority to legislate patents is granted to the federal government under the Constitution Act, 1867. A patent grants the inventor the exclusive right to make, use, or sell their invention in Canada for a limited period, in exchange for public disclosure of the invention.
What Can Be Patented?
To be eligible for patent protection in Canada, an invention must meet the following criteria:
- Novelty: The invention must be new and not previously disclosed to the public.
- Utility: The invention must have a useful purpose.
- Non-obviousness: The invention must represent a significant improvement over existing technology and not be obvious to someone skilled in the field.
- Patentable subject matter: Includes products, processes, machines, compositions of matter, and improvements to any of these.
What Cannot Be Patented?
- Scientific principles or abstract theories.
- Medical treatments (though medical devices may be patented).
- Software as such (unless tied to a novel process).
- Business methods (unless tied to a technical innovation).
Aspects of Patent Law
- Patent Application
- Patent Ownership
- Patent Enforcement
- Patent Licensing
- Patent Infringement
Patent Application Process in Canada
- Filing: Applications are submitted to the Canadian Intellectual Property Office (CIPO). A complete application includes a detailed description, claims defining the invention, drawings (if applicable), and an abstract.
- Examination: The application undergoes a substantive examination to ensure it meets all patentability requirements.
- Grant: If the application is approved, the patent is granted, and the details are published in the public database.
Patent Duration
A Canadian patent provides protection for up to 20 years from the filing date, provided maintenance fees are paid. If maintenance fees are not paid, the patent lapses, and the invention falls into the public domain.
Rights of Patent Holders
A patent holder has the exclusive right to:
- Make, use, and sell the invention.
- License the invention to others.
- Enforce rights through legal action against infringers.
Patent Infringement
Patent infringement occurs when someone makes, uses, or sells a patented invention without the patent holder’s permission. Remedies for infringement include injunctions, damages, and account of profits.
Licensing and Assignment
A patent can be licensed or assigned to another party. Licensing allows the patent holder to grant permission to others to use the invention under agreed terms, while assignment transfers ownership of the patent.
Public Disclosure and Patents
An inventor must file for a patent before publicly disclosing their invention. If the invention is disclosed before filing, the inventor has a 12-month grace period to file for a patent in Canada.
International Patents
Canadian patents are territorial and provide protection only within Canada. Inventors seeking international protection can file through the Patent Cooperation Treaty (PCT) or directly with individual countries.
Last Reviewed January 2025